The trial court made the following findings, which we are bound to accept
because they are supported by the evidence. State v. Stroup, 147 Or App 118, 120, 935
P2d 438 (1997). During the midmorning hours of September 9, 2000, Oregon State
Police Officer Knapp noticed that defendant was driving without wearing a seatbelt and
that his license plate tags had expired, both traffic infractions. ORS 811.210; ORS
803.560. Knapp pulled defendant over and parked behind his car. Leaving the lights
flashing on his patrol truck, Knapp walked to defendant's car and asked for his license,
registration, and proof of insurance. Defendant gave Knapp a valid driver's license but
was unable to produce the other documents. As Knapp was talking with defendant, a
second officer, Trooper Heuberger, arrived to back up Knapp. Heuberger parked his
patrol car across the street from defendant's. Knapp told Heuberger that he wanted to
search defendant "for illegal narcotics, drugs, [and] weapons"; apparently, at an earlier
encounter between Knapp and defendant, Knapp had noticed "tracks" on defendant's arms
and suspected that he was an intravenous drug user. Heuberger went to stand behind
defendant's car while Knapp wrote out a citation for expired tags and warnings for the
seatbelt violation and for failure to produce proof of insurance.

Knapp then returned to defendant's car and handed him the citations and his
license. He told defendant that he was free to go. However, knowing that defendant
intended to open the car door in order to go to a grocery store across the street, Knapp
positioned himself about a foot from the door in such a way as to prevent defendant from
opening it and, as defendant was putting his wallet back in his pocket, asked defendant
for consent to search the car. At the time, neither Knapp nor Heuberger had any concerns
for their own safety or any suspicion that defendant had committed a crime. Heuberger
was still standing behind defendant's car and the flashing lights on Knapp's patrol vehicle
were still on. Defendant felt that he could not leave. He consented to the search.

Knapp asked defendant to get out of the car, and defendant went to stand
next to Heuberger. Knapp searched the car and found two pipes with marijuana residue, a
small knife with residue, and a bong with residue. He also found a folded piece of
aluminum foil in a jacket that belonged to defendant. The foil contained
methamphetamine residue. Defendant told the officer that the marijuana paraphernalia
belonged to a friend but admitted that the piece of foil was his. Knapp told defendant that
he would have the residue tested and recontact him. He then told defendant (again) that
he was free to go. After tests indicated the residue was methamphetamine, defendant was
charged with possession of a controlled substance. ORS 475.992(4)(b).

The state has the burden of establishing the legality of this warrantless
search by a preponderance of the evidence. ORS 133.693(4). In a memorandum and in
oral argument before the trial court, the state maintained that no unlawful detention
occurred; the stop was lawful, it terminated when the officer returned documents to
defendant and told him he was free to go, and subsequent conversations between the
officer and defendant (including the request for consent to search) were just that: mere
conversation. Further, the state argued, even if the stop did not end but continued through
the request for consent and subsequent search, the officer had express authority to make
that request under ORS 810.410(3)(e), which provides that, during a traffic stop, an
officer "[m]ay request consent to * * * search" for contraband. Defendant responded that
the proper inquiry was a "two-part analysis": first, whether the search violated Article I,
section 9, of the Oregon Constitution or the Fourth Amendment to the United States
Constitution; and, second, if so, whether the evidence resulting from that unlawful search
had to be suppressed. According to defendant, the search was unconstitutional because
the officer had no reasonable suspicion that he had committed a crime, and the evidence
had to be suppressed because his consent was not voluntary. The trial court held that the
entire encounter between defendant and the police was one stop; that after Knapp cited
defendant and returned his license, the reason for the stop ceased to exist so that further
detention was unlawful; and that, under the circumstances, defendant's subjective belief
that he was being detained was reasonable. The court concluded that defendant's consent
occurred during the unlawful detention and was therefore invalid. Although the court
concluded that defendant did not voluntarily remain in his car, it did not decide whether
he voluntarily consented to the search.

On appeal, the state renews its argument that neither ORS 810.410 nor the
state or federal constitution prohibits an officer from requesting consent to search during
a traffic stop even if the officer does not have any suspicion of criminal activity. Further,
the state contends that, the request did not occur after the stop but during it; that if it
occurred afterwards, it was not part of a constitutionally significant seizure but "mere
conversation"; and that, even if the request occurred after the lawful stop ended and
during a subsequent unlawful detention, that fact by itself does not require the court to
suppress the evidence because defendant's consent was the result of neither police
exploitation of an illegality nor of coercion. Defendant, relying primarily on the Fourth
Amendment, contends that his continued detention after the purpose for the traffic stop
ended amounted to an unlawful seizure and that therefore, because the state did not
establish that the connection between the unlawful detention and the request for consent
was "attenuated," the consent was involuntary and the evidence was therefore
inadmissible.

We find many of these arguments easily resolved. It is now clear, for
example, that ORS 810.410(3)(e) authorizes police to request consent to search during a
lawful traffic stop even with no individualized suspicion and that neither Article I, section
9, nor the Fourth Amendment prohibits such a request. State v. Amaya, 176 Or App 35,
44, 47, 29 P3d 1177 (2001), rev allowed, 334 Or 288 (2002); State v. Duffy, 176 Or App
49, 52-53, 29 P3d 1222 (2001). Further, some of the arguments are irrelevant. It does not
matter, for example, whether the historical facts demonstrate a single stop or two separate
stops. In either case, the question is the same: whether, at the time of the request for
consent to search and in the absence of reasonable suspicion, defendant was being
unlawfully detained. If, as the trial court held, the entire event encompassed but a single
stop, then the question is whether the request occurred during an unlawful extension of
the originally lawful stop. Toevs, 327 Or at 534-35. If two stops occurred, then the
question is whether the request occurred during an independently unlawful stop or during
"mere conversation," which does not implicate constitutional protections. State v.
Holmes, 311 Or 400, 407, 813 P2d 28 (1991). Both questions turn on whether defendant
had an objectively reasonable belief that a law enforcement officer had significantly
restricted his freedom of movement. Id. at 409-10; Toevs, 327 Or at 535.

In the present case, the trial court found as fact that defendant believed that
he was not free to leave, despite Knapp's assurance that he was. The court also found that
defendant's belief was objectively reasonable. The former finding is factual. We accept
it because there is evidence to support it: defendant's uncontradicted testimony. The latter
conclusion is legal. Toevs, 327 Or at 535; State v. Puffenbarger, 166 Or App 426, 434,
998 P2d 788 (2000). We agree with the trial court on that issue as well. Defendant found
himself in the presence of two uniformed police officers. Two police vehicles were
nearby, one of which had its flashing lights on. One officer stood behind defendant's car.
The other, to whom defendant had related his plan to leave the car, stood so as to make
that exit impossible and then asked defendant a question. A reasonable person in
defendant's position would have felt that the officers had significantly restricted his
freedom of movement. See Toevs, 327 Or at 537 (despite officer's assurance to defendant
that he was free to go, defendant's belief that he was not was reasonable under the totality
of the circumstances; "an officer's conduct after stating that a driver is free to go may
negate such a statement" (emphasis in original)). Thus, the officer's request for consent
to search occurred during an unlawful detention.

That conclusion is relevant to the question whether the evidence must be
suppressed, but it is not dispositive. That is so because a person can give a valid consent
even after having been unlawfully seized. Arabzadeh, 162 Or App at 426-28. As the
Supreme Court observed in State v. Rodriguez, 317 Or 27, 38-40, 854 P2d 399 (1993),
evidence discovered in a consent search after an unlawful police detention need not be
suppressed unless the consent was involuntary or it resulted from police exploitation of
the unlawful detention. In the present case, defendant never argued to the trial court that
police exploited the unlawful detention in order to extract consent. Rather, his argument
relied entirely on voluntariness. When the issue is voluntariness, then the prior unlawful
activity

"may have some effect on the state of mind of the person giving the
consent, affecting whether the consent is a voluntary act of that person's
free will. Where the unlawful conduct bears on the voluntariness of the
consent, as in any other case where voluntariness is at issue, the state must
prove by a preponderance of the evidence that the consent was voluntary."

Rodriguez, 317 Or at 38 (emphasis added; footnote and citation omitted). Thus, the
dispositive issue in this case is whether defendant's consent was voluntary.

As noted above, the state has the burden of proving voluntariness by a
preponderance of the evidence. However, the state never argued to the trial court that
defendant's consent was voluntary. The prosecution began by arguing that the stop was
not unlawful under any statute or constitutional provision. Defendant responded that it
was unlawful and that the consent that ensued was not voluntary, arguing that

"mere acquiescence, mere consent in the presence of lawful authority is not
enough to give valid consent. If the defendant doesn't feel he's free to go,
then * * * he doesn't have the ability to say no, then his consent is not
voluntarily given[.]"

The state never replied to that voluntariness argument. Because it never contested that
issue, it did not "identify [it] adequately for the judge." State v. Wyatt, 331 Or 335, 341-43, 15 P3d 22 (2000). That being the case, the issue cannot be raised for the first time on
appeal. Id.